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Tips for Corporate Whistleblowers to Combat Retaliation

Following the collapse of Enron due to massive fraud, Congress enacted the Sarbanes-Oxley whistleblower protection law.  Though SOX can be a potent tool to combat retaliation, there are pitfalls and obstacles that whistleblowers should take into account to maximize the likelihood of obtaining a substantial recovery.  Based on more than a decade of litigating SOX whistleblower cases, Zuckerman Law has issued a free Guide to Sarbanes Oxley Whistleblower Protection.The guide provides an overview of the key elements of a SOX whistleblower retaliation claim, and the procedures governing the investigation and adjudication of SOX claims.

Hiring an experienced SOX whistleblower attorney increases the likelihood of obtaining a substantial recovery.  Recently some SOX whistleblowers have obtained large verdicts in SOX whistleblower cases, including the following:

The SOX whistleblower guide addresses the following topics:

WHISTLEBLOWERS PROTECTED BY THE SARBANES-OXLEY ACT

  • Who is protected under SOX’s whistleblower-protection provision

ELEMENTS OF A SOX WHISTLEBLOWER RETALIATION CLAIM

  • Can a whistleblower sue an individual under SOX?

PROTECTED WHISTLEBLOWING

  • Is a SOX whistleblower required to prove shareholder fraud?
  • Does SOX protect whistleblowing about potential violations of federal securities laws?
  • Are SOX whistleblowers required to show that their disclosures relate “definitively and specifically” to a federal securities law?
  • Does SOX-protected conduct require a showing of materiality?
  • What are some types of proof to show that a disclosure is objectively reasonable?
  • Are disclosures made in the course of performing one’s job duties protected?
  • Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower-protection case?
  • Does SOX protect disclosures about fraud on the government or gross mismanagement of a federal contract or grant?
  • Are disclosures about consumer financial fraud protected under SOX?
  • Is there some variation in how courts interpret the scope of SOX protected whistleblowing?

KNOWLEDGE OF PROTECTED CONDUCT

  • Must a whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower’s protected activity?

PROHIBITED WHISTLEBLOWER RETALIATION UNDER SOX

  • What acts of retaliation are prohibited by the SOX whistleblower-protection provision?
  • Is constructive discharge a prohibited act of retaliation under SOX?
  • Does SOX prohibit employers from “outing” confidential whistleblowers?
  • Does SOX prohibit post-termination retaliation?
  • Is retaliation that occurred outside of the statute-of-limitations period relevant evidence of retaliation?

PROVING SOX WHISTLEBLOWER RETALIATION (CAUSATION)

  • What is a whistleblower’s burden to prove retaliation under SOX?
  • In a mixed-motive case (where there is evidence of both a lawful and unlawful motive for the adverse action), does the evidence of a legitimate justification for the adverse action negate the whistleblower’s evidence that whistleblowing partially influenced the decision to take the adverse action?
  • Is a SOX whistleblower required to prove that the employer’s justification for the adverse action is false (otherwise known as pretext)?
  • Is a SOX whistleblower required to prove that the employer had a retaliatory motive?
  • Is close temporal proximity sufficient to establish causation?
  • Does subjecting an employee to heightened scrutiny evidence retaliation?

EMPLOYER AFFIRMATIVE DEFENSE

  • What is the employer’s evidentiary burden in a SOX whistleblower-retaliation case?

DAMAGES

  • What damages can a whistleblower recover under SOX?
  • If reinstatement is not feasible, can a judge award front pay in lieu of reinstatement?
  • Does SOX authorize an award of punitive damages?

LITIGATING SOX WHISTLEBLOWER CLAIMS

  • Who administers the whistleblower-protection provision of SOX?
  • What is the statute of limitations for a SOX whistleblower-retaliation case?
  • What level of detail is required in a SOX complaint?
  • Where can a whistleblower file a SOX retaliation complaint?
  • Do mandatory arbitration agreements encompass SOX whistleblower claims?
  • Can OSHA order reinstatement of a SOX whistleblower?
  • Where are SOX whistleblower cases litigated?
  • How can a SOX whistleblower appeal an ALJ’s decision?
  • If a SOX whistleblower prevails before the ALJ, can they appeal part of the ALJ’s decision?
  • Where can a SOX whistleblower appeal an ARB decision?
  • Can a SOX whistleblower bring a retaliation case in federal court?
  • Is there a time limit for filing a SOX complaint in federal court after removing the claim from the Department of Labor?
  • Does the SOX Act authorize jury trials?
  • What is the scope of discovery in a SOX whistleblower case?
  • Do formal rules of evidence apply in SOX whistleblower trials at the Department of Labor?
  • Does Section 806 of SOX preempt other claims or remedies?

 

Sarbanes-Oxley Whistleblower Attorneys

best sexual harassment attorneys Washington DC Maryland VirginiaThe whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals.  Click here to read client testimonials about the firm’s work in SOX whistleblower matters and other employment-related litigation.

If you have suffered retaliation for whistleblowing, contact us at 202-262-8959 to schedule a free preliminary consultation.

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Leading whistleblower law firm Zuckerman Law writes extensively about whistleblower protections and is quoted frequently in the media on this topic. Below is a sample of those blog posts and articles:

SEC whistleblower rules